Judgment in MH v United Kingdom

23.10.13 |
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European Court of Human Rights hands down judgment in MH v United Kingdom, significantly strengthening the rights of mentally disordered individuals detained by the State.  Paul Bowen QC, instructed by the Official Solicitor and Elliott Bridgman, Solicitors, acted for MH.

 

In this important, potentially landmark decision – and nearly eight years to the day after MH’s unsuccessful appeal to the House of Lords in R (H) v Secretary of State for Health [2006] AC 441 - the ECtHR held that the United Kingdom must have in place ‘special safeguards’ to protect the rights of those lacking capacity to take proceedings to challenge the lawfulness of their detention so as to make ‘the right guaranteed by Article 5 § 4 as nearly as possible as practical and effective for this particular category of detainees as it is for other detainees’ (para 82).  While this does not mandate an automatic right of review (ibid), there must be some mechanism which guarantees the right.  Merely making available a right to take proceedings is insufficient where the individual lacks capacity to apply to the Mental Health Tribunal, so that there had been a breach of Art 5(4) in the first period of MH’s detention under s 2 Mental Health Act 1983 (see para 86).  However, imposing a duty upon another party to bring proceedings on behalf of the incapacitated individual may be sufficient to comply with this obligation, so that the fact the Secretary of State for the Home Department later made a reference under s 67 MHA meant there had been no breach of Art 5(4) in relation to the second period of detention.

 

The full significance of the decision is likely to take time to work through the domestic and European legal systems.

 

The judgment is available here

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